Just the Facts: Reimagining Wartime Investigations Concerning Attacks Against NGOs

Abstract

Since October 2015, the United States has been in conflict with an NGO—Doctors Without Borders—over the bombing of the NGO’s hospital in Kunduz, Afghanistan, early that month. Various fact-finding efforts by the US Central Command, the UN Mission in Afghanistan, NATO, and Doctors Without Borders focused on one question: whether the bombing conduct constituted a war crime. This focus on issues of law, guilt, and blame diverted attention from the more basic questions of what actually happened, why it happened, and what might be done to prevent similar incidents in the future. Moreover, the fact-finding efforts ended up exacerbating the controversy and exposing the inherent disbelief and mistrust between States, NGOs, and legal institutions. The attack on the Kunduz hospital and the controversy that followed exemplify a broader phenomenon. Legal fact-finding efforts aimed at resolving factual disputes often trigger more controversies, as the aforementioned entities are generally ill-equipped to gather sensitive military information and to facilitate cooperation among interested parties. This is particularly true when the controversy relates to attacks harming non-State actors, such as Doctors Without Borders. Fact-finding efforts surrounding such attacks generally suffer from structural, political, and legal weaknesses, particularly with regard to gathering sensitive military information. By utilizing literature from three disciplines—international law, international relations, and organizational sociology—this Article offers an interdisciplinary framework to design fact-finding processes for conflicts between States and non-State actors. In particular, by exploring the complex social environment enabling wartime atrocities, this Article suggests moving away from criminalization, legal blame, and individualizing guilt in favor of an organizational “learning from failure” approach focused on future prevention, organizational change, and improving decision-making processes.